Death, Taxes, and Gerrymandering

As a law student, I typically become mildly giddy when I hear about the Supreme Court taking on a controversial case; however, there are a few cases the Court grants certiorari to that causes me to audibly gasp and possibly scream like a kid on his way to Disney world.  Cases like Obergefell, Citizens United, and Sebelius all garnered my schoolboy response, yet we stand on the brink of another and my shrill screams are, but moments away from piercing the silence.  Whitford v. Gill is quite possibly the most consequential case the Court will hear and its result could change everything.  The most shocking aspect of this case is that most people have never even heard of it.  So, what is it about you may ask?  Well Blanche I will fill you in.  Whitford v. Gill is all about partisan gerrymandering and its holding could take this once sacred cow to the sacrificial alter.[1]  To give a brief overview of its significance I will explain the why this case is so consequential by doing the following: (1) I will define gerrymandering and crucial aspects about it; (2) explain what Whitford v. Gill is about; and (3) provide a brief synopsis about the ramifications.

 

Bromell
This post is written by Associate Editor Michael Bromell . Opinions and views expressed herein are those of the writer alone.

What is gerrymandering?  Well, Dictionary.com defines gerrymandering as the dividing of a state, county, etc., into election districts so as to give one political party a majority in many districts while concentrating the voting strength of the other party into as few districts as possible.[2]   While gerrymandering is a political process it is a natural process as well. It is merely common sense that an incumbent party allowed to redraw congressional districts will draw them in a way that benefits said party.  In other words, water is in fact wet.  Yet, the Court has found gerrymandering is unconstitutional when it is used to impermissibly dilute the collective voices of minorities.[3]When looking at partisan gerrymandering the Court tackled the issue in Vieth. [4] In Vieth there was a 4-1-4 split.[5] The lone justice was in fact Justice Anthony Kennedy.[6] In that case Justice Kennedy, who suggested partisan gerrymandering is unconstitutional, went on to propose partisan gerrymandering may in fact run afoul to the Constitution by violating the first amendment.[7]

 

That brings us to the current challenge.  In Whitford v. Gill, democratic voters claimed that the redistricting plan drafted and enacted by the Republican-controlled Wisconsin legislature was unconstitutional partisan gerrymandering.[8]  They alleged that the system diluted the voting strength of democratic voters statewide based on their beliefs by the process of cracking, “or dividing party’s supporters among multiple districts so they fell short of majority in each one, and “packing”, or concentrating one party’s backers in few districts that they won by overwhelming margins.[9] The Court found that the redistricting plan did dilute the voting strength of democratic voters by doing both cracking and packing.[10]  The Court concluded that this scheme was drawn and had the effect of entrenching the majority party, republicans, in perpetual power and was therefore unconstitutional.[11]

 

The Supreme Court will ultimately decide whether partisan gerrymandering is permissible.  The decision could impact our lives in a drastic and unforeseen way.  This is, because an affirmative decision would fundamentally change how legislatures can redraw lines.  Legislatures could be barred from creating these perpetual safe seats that discourage competition. Without having seats that are so easily won we may see the return of an old friend. A world without such gerrymandering could bring back the proverbial “political center.” This would happen by the mere virtue of competitive districts.  If a district is in fact 50, 50 then no party may drift too far to the fringes of the party.  A Republican would not necessarily have to worry about a challenge to his or her right; however, it would be reasonable for a Republican to worry about a challenge to his or her left.  Therefore, a Republican or Democrat would moderate their views.  The removal of partisan gerrymandering may just be the step.  Maybe it is the brick being taken down in the wall of partisanship or maybe the Court will decide that partisan gerrymandering is as American as death and taxes.  I guess for now we will just have to enjoy the ride.

 

[1] Whitford v. Gill, 218 F. Supp. 3d 837, 844 (W.D. Wis. 2016).

[2] DICTIONARY.COM, http://www.dictionary.com/browse/gerrymander (last visited Oct. 2, 2017).

[3] Cooper v. Harris, 137 S. Ct. 1455 (2017).

[4] Vieth v. Jubelirer, 124 S. Ct. 1769 (2004).

[5] Id.

[6] Id.

[7] Id.

[8] Whitford, supra 1.

[9] Id.

[10] Id.

[11] Id.

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

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